It's Not Just The Memorialization--It's The Glorification of Slavery and Jim Crow

Imagine a time when cities pay homage to men found guilty of sexual assault or violence against women by reverently erecting monuments to honor and memorialize them at the courthouses, in neighborhood parks, frequently traversed intersections, town squares adjacent to local municipal buildings, and at state universities.

The justification? To laude men who fought valiantly to preserve coverture (legalized slavery of married women) and remember a more genteel way of life, whereby men recognized their important roles as masters of the home, leaders in communities, and providers for their families. To celebrate male supremacy and highlight their so-called superiority over women.

You may call this thought experiment outlandish—after all, who would ever think to celebrate men who amused in the thought of sexually and physically harming women and subordinating them in society? What city would devote precious resources and prime real estate to revel a cause that resulted in demeaning and degrading women and for what purposes? The very thought might seem bizarre and peculiar to you. Some readers may disbelieve that a time ever existed when legislatures and courts sanctioned women as legal chattel.

Yet, there was a time—not too long ago in American history—when women were relegated to the status of property and men were elevated to the fictionalized status of lords and gods of their homes. Like racism, sexism too was legally sanctioned, flagrant, and permissive in the United States, embedded in laws and judicial rulings that defined married women as property, permitted husbands to rape their wives, and sanctioned physical violence and even torture against women. The law of the land was that women were intellectually inferior to men, incapable of reason, bound to the home, and deserving of male protection and not independence from them.

Like racialized slavery, this history dates back. In 1736, Sir Matthew Hale’s highly acclaimed treatise, Historia Placitorum Coronae, History of the Pleas of the Crown, maintained that it was impossible for a woman to be raped by her husband. Hale cautioned that a “husband cannot be guilty of rape” because marriage conveys unconditional consent, whereby wives have entered a binding contract and “hath given up herself in this kind unto her husband, which she cannot retract.” No prior English common law articulated this standard, but Hale’s new rule found broad support among parliamentarians and subsequently influenced legal developments in the British colonies and in the United States. Nearly every state legislature enacted laws that shielded husbands from criminal punishment for raping their wives (and sometimes, even girlfriends). In 1993, North Carolina was the last state to rescind the marital rape exemption. Simply put, women lacked a right to refuse and essentially were their husbands’ sexual slaves.

Consider the 1857 case of Commonwealth v. Fogerty, which involved the brutal gang rape of a ten-year-old girl. In that case, the Supreme Court of Massachusetts deferred that although the men were guilty, if one of them were married to the little girl that would serve as a “defence [sic] of a charge of rape.” A century later in People v. Henry, a case where a father admitted to raping his pregnant daughter, a California appeals court reasoned that if the girl were married, such as to her father, it would bar the state’s prosecution of rape. More recently, in State v. Paolella, the Connecticut Supreme Court ruled that despite “ample evidence” of rape, an estranged husband who coordinated the kidnapping—at gunpoint—and rape of his wife, could not be found guilty of that crime—as he was still married to the victim. The Court ruled: “a defendant married to the alleged assault victim cannot be found guilty of violating those sexual assault statutes.”

This legal standard became ensconced in law throughout the United States. As one court claimed, it “was a grave breach of marital duty” for wives to refuse intercourse with their husbands. According to the Supreme Court of Alabama, “a husband may enforce sexual connection . . . and . . . in the exercise of his marital right he cannot be guilty of the offense of rape.” For centuries, courts refused to recognize marital rape as a crime for which wives deserved any relief or safe harbor.

So, imagine if on the fiftieth anniversaries of the most flagrant cases, lawmakers, private citizens, and male social clubs commissioned statues to memorialize the good old days, when men ruled their homes, wives, daughters, and little girls in cotton fields. It doesn’t really matter if the statues memorialize the legislators, judges, or men who agitated to uphold the system. Then imagine, fifty years later that armed men galvanize in town squares and streets across the United States with torches, switchblades, and semiautomatic rifles, threatening violence if those monuments—of their idols—are decommissioned and removed.

As a law professor, these matters come to mind in the wake of Heather Heyer’s untimely, tragic death in Charlottesville, Virginia last week. Ms. Heyer, a 32 year-old paralegal was killed by James Alex Fields, Jr., a young man who weaponized his car, plowing it into Ms. Heyer and many other peaceful demonstrators advocating for unity and equality. Mr. Fields pilgrimaged to Charlottesville like other white nationalists, supremacists, and neo-Nazis from all over the United States to rally against the removal of a statue memorializing General Robert E. Lee, the Confederacy’s most celebrated war hero—who was nevertheless unequivocally defeated. The statue depicts Lee as a larger than life figure, gallantly sitting atop a horse—a victor in bronze statue even if not in real life.

Ironically, Lee’s statue was not constructed before, during, or immediately after the Civil War, which ended in 1865. Nor was it commissioned at the time of his death, in 1870. Rather, Charlottesville’s statue honoring General Lee was erected fifty years later, in 1921, during the rise of Jim Crow—a period marked by the explosive rise in lynchings of Black Americans who were no longer the legal property of southern white men and women. The 1920s were a time of segregation, where southern cities collected taxes from everyone, but coveted those resources for the benefit of white citizens to enjoy parks, swimming pools, theatres, schools and universities.

That Lee stands alone tells us much about the monument’s purpose and contemporary failures to place the memorialization of confederates in context. For example, there is no statue honoring Virginians like James Armistead Lafayette nearby—he was born into slavery, but joined the American Continental Army to fight in the American Revolution or Mary Elizabeth Bowser also born into slavery in Virginia, but who served as a key spy for the Union. She was honored by the U.S. Army Military and inducted into their Intelligence Corps Hall of Fame.

In other words, confederate monuments may have had very little to do with the figures they supposedly honored. Rather, the images served at least three important purposes. First, as a potent reminder for local whites of supposed superiority over their Black neighbors. These perceptions while not rooted in fact, were bounded in a vile legal history, which permitted slavery and promoted Jim Crow. Let’s face it, slavery is a bad idea—no white person would want this for their child’s future, just as no man should wish for his daughter to be raped by her husband or anyone else.

Second, the monuments instilled fear and were a backlash against the end of slavery. Not surprisingly Black men and women were lynched in the 20th century in places where confederate flags fly and monuments are built. In Hot Springs, Arkansas, the lynchings of Will Norman and later Gilbert Harris were soon after marked by a statue honoring a Confederate soldier.

Third, these monuments reflected an even greater perversity in society—that Black people should never be granted an inch of happiness and enjoyment. Think about it: during segregation, whites did cavort with Blacks, including bringing them into their homes and businesses, but only as underpaid servants: maids, nannies, cooks, drivers, etc. This level of intimacy suggests that segregation was a rouse not about separation, but about equality and happiness. Why else sanction inadequate schools, often containing no books, banning Black people from parks, barring children from using swimming pools, denying access to state colleges, and so much more? This may be the worst part about the system of institutionalized racism—that it sought to undermine the basic inalienable right to happiness.

Today, these symbols are not so much about the men they glorify; after all, picking up books to read about Robert E. Lee, Stonewall Jackson, Jefferson Davis, and P.G.T. Beauregard or visiting museums would be far more enlightening and illuminating. Instead, these landmarks gloat violence and regale in the good old days of American slavery and Jim Crow.

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